Director of Public Prosecutions v Kitchen

[2016] VCC 1045

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00713

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEVILLE ST JOHN KITCHEN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2016
DATE OF SENTENCE:	15 July 2016
CASE MAY BE CITED AS:	DPP v Kitchen
MEDIUM NEUTRAL CITATION:	[2016] VCC 1045

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady	Office of Public Prosecutions
For the Offender	Mr G. Steward	Tony Hargreaves & Partners

HIS HONOUR: 

1Neville St John Kitchen, you have pleaded guilty to one count of threat to kill, contrary to s.20 of the Crimes Act 1958. The maximum penalty for that offence is five years' imprisonment. You have also pleaded guilty to one count of intentionally causing injury, contrary to s.18 of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment.

2You pleaded guilty at committal mention, on 23 March 2016, and I have taken your early plea of guilty into account in your favour in mitigation of sentence. 

3You have no prior convictions, subsequent convictions, or outstanding charges.

4A prosecution opening was read to the court and tendered in evidence and your offending may be summarized as follows -

5The victim of your offending is your wife of 31 years.  You separated from her in November 2015.  On 5 December 2015, your wife went to the family holiday home in Blairgowrie for the summer holidays.  At approximately 3.26 am, on
6 December 2015, you entered the house, despite being told by her lawyers in a letter that you were not welcome to do so.  Your wife awoke.  You threatened her and said to her, "Alison, die you bitch."  This threat is relied upon by the prosecution in support of Charge 1 on the Indictment.

6You then walked towards her holding a pillow.  A struggle ensued during which your wife suffered the injuries the subject of Charge 2 on the Indictment.  The struggle continued in the house.  Shortly thereafter, you stopped your attack and broke down and was crying.  Your wife was terrified but took steps to calm you down.  She spoke to you in the early hours of the morning and you also spent time together in the shops at Blairgowrie that morning. 

7Later that day she returned to Melbourne and reported the matter to the police at the Prahran Police Station.  You were arrested that day and conveyed to Prahran Police Station to be interviewed.  You were examined there by a police Doctor who observed that you were suffering from severe depression, were then suicidal and unfit to be interviewed.  You were charged with the offences before the court and remanded in custody.  You were bailed to reside at a psychiatric hospital on 17 December 2015.

8Your offending may be properly described as extremely serious.  The sentence I impose must be calculated to deter you and others from offending in this way, although the principles of general deterrence and specific deterrence will be significantly moderated in your case for reasons I will shortly explain.  This sentence must also be calculated to protect your wife and the community more generally. 

9I now turn to your personal circumstances.  You were born in the United Kingdom on 18 January 1959 and you are now aged 57.  Your mother died when you were an infant and your father remarried.  Following this, you and your brother were placed in an orphanage when you were five years of age.  Your childhood was marked by abuse and ill treatment.  Despite this you performed well academically at school, obtained entry to Sheffield University and there completed a Bachelor of Medicine.  It was at Sheffield University that you met your wife.

10You and your wife travelled to Perth in 1984 and were married shortly thereafter.  You have one daughter who was born in 1992.  Following your arrival in Australia you worked as a medical practitioner.  However your adult life has been seriously compromised by extremely poor mental health, which is no doubt a direct result of the childhood abuse that you suffered.

11I have received in evidence a Victim Impact Statement of your wife, which attests to your deteriorating mental health as you became older and her efforts to support you in that regard.

12I have also received in evidence three psychiatric reports of your treating psychiatrist, Dr Remy Glowinski, detailing your longstanding mental health history, your current treatment and past treatment and his current opinion in relation to your mental health.

13In his report dated 4 February 2016, Dr Glowinski concludes as follows: 
"Dr Kitchen is not a straight forward psychiatric case and I cannot at this stage be definitive regarding a bipolar diagnosis.  Understanding Dr Kitchen's behaviour as being part of a psychological adjustment reaction remains a plausible psychiatric formulation.  Overall I prefer a diagnosis of mixed affective episode as part of a bipolar affective disorder Type 2, which has occurred in the setting of antidepressant administration, longstanding dysfunctional personality traits and recent psychological stress."

14It is plain from Dr Glowinski's reports that, as I have already observed, you have suffered from mental illness throughout your adult years.

15The prosecution do not dispute that the principles enunciated by the Court of Appeal in The Queen v Verdins (2007) 16 VR 269 are engaged in your case. It is plain that your offending occurred during a period of intense psychological collapse and decompensation and, as observed by the doctor who examined you at Prahran Police Station on 6 December 2015, you were in a very poor mental health state at that time.

16This is, in my opinion, a clear case where the principles enunciated in The Queen v Verdins are engaged.  As a result the sentencing principles of general deterrence and specific deterrence are to be moderated in your case.  Ordinarily a case of such seriousness occurring in a domestic setting would attract a term of imprisonment, but having regard to your mental condition at the time of your offending and the need for ongoing mental health treatment in your case, I have had you assessed for a Community Correction Order.  This course was also not opposed by the prosecution.

17I have received a report from Corrections Victoria setting out that you are suitable to be placed on a Community Correction Order and, in my opinion, that is the appropriate course to adopt in your case.

18Your wife's protection and the protection of the community will be facilitated by you receiving ongoing psychiatric treatment and the support of Corrections Victoria.  In my opinion, the purposes for which this sentence is to be imposed will be best achieved by you being released on such an order.

19I should note that I accept that you are now remorseful for your offending and the deeply traumatic effect that it has had upon your wife and daughter.

20In the result the sentence of the court is as follows:

21In respect of the charge of threat to kill and the charge of intentionally causing injury, you are convicted and released on a Community Correction Order for a period of two years on the conditions provided for in the Sentencing Act 1991.

22Furthermore, I order the following special conditions: 

(1)       During the period of the order, you be under the supervision of a Community Corrections Officer; 

(2)       You undertake treatment and rehabilitation in respect of your mental health as directed; and 

(3)       You undertake programs to reduce the risk of you re-offending.

23Do you agree to entering an order on those terms?

24OFFENDER:  I do, sir.

25HIS HONOUR:  Thank you.  My associate will prepare the order and you can step out of the dock now.  You can step out of the dock. 

26Dr Kitchen, you are on a community corrections order for a period of two years.  Your counsel will explain to you the effect of that order.  Perhaps most significantly a breach of the intervention order that your wife has would constitute a breach of the community corrections order, so under no circumstances are you to breach that intervention order.  I did not make a non-association condition in the community corrections order because there is an intervention order in place, so you are bound by that, all right?

27OFFENDER:  Yes, sir.

28HIS HONOUR:  You just follow the directions of Corrections Victoria and your treating psychiatrist.

29OFFENDER:  Yes, sir.

30HIS HONOUR:  All right, thank you.  Yes.  We will adjourn until 10.30 on Monday.

31(Community corrections order signed and acknowledged.)

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